Among many shameful parting shots from the outgoing president, Joe Biden forgot our Constitution only has 27 amendments and conjured the existence of a 28th.
On the Friday before Monday’s inauguration, Biden issued a declaration on social media and in a speech to the U.S. Conference of Mayors, asserting that the so-called Equal Rights Amendment, which has achieved ratification in only three states since being rejected in the 1970s, was the “law of the land — now!”
Even liberal outlets such as NPR and the Washington Post admit the declaration has no actual force, as the executive branch has no power over the amendment process. The archivist under Biden’s own administration did not certify the ERA, and according to reports, Biden did not order her to do so. Still, the last-second declaration is just the latest in a series of lawless attempts by Democrats to loophole around the purposely difficult Article V amendment process and get a shortcut to another bite at the ballot box-poisoned gender ideology apple.
While the ERA originally debuted in the 1920s, it’s been so firmly etched into the cultural landscape of the 1970s that it competes with bell bottoms. At one point, the amendment had achieved the two-thirds requirement in both houses, an endorsement in the platforms of both political parties, and 35 state ratifications.
But then Phyllis Schlafly and conservative women pointed out some of the same shortcomings opponents point to today — that the ERA, in fact, damages the station of women by forcing them to be interchangeable with men in the eyes of the law — and the amendment was roundly defeated, stopped short of ratification, and tossed in the dust bin, or so everyone thought.
In modern times, Democratic activists revived the amendment with a ratification in Nevada in 2017, followed by ratifications in Illinois in 2018 and Virginia in 2020. For those keeping up with the math, that’s three states out of the necessary 38, but activists declared victory anyway, cobbling together ratifications from the 1970s, including several that had sunset clauses and those that had been rescinded, to reach the magic number, at least in their minds.
Congress had also set and extended a deadline for ratification that expired in the early 1980s, so the next part of the plan was to dissolve that deadline (not even by the constitutionally required two-thirds but by bare majority). While such an effort passed the Democratic-controlled house, it never passed the Senate, so proponents dispensed with that requirement too, choosing instead to declare victory preemptively, suing the archivist for inscription in 2020 in another failed effort.
The purpose of the Article V process, with its high thresholds for both houses of Congress and state ratifications, is to secure broad and popular agreement with any amendment to our highest law. On that most basic metric, the ERA flunks the test. Over 60% of eligible voters today were either not born or too young to be eligible to vote the last time the country had a debate over the merits of the amendment. Put simply, people have not had time to consider the question of the ERA on its merits and have yet to render their decision. It must go, as famous ERA proponent the late Justice Ruth Bader Ginsburg admitted, “back in the hopper” and start over.
While debate over the amendment itself has been short-circuited by the dubious legal process, some of the substance and consequences of the ERA have entered the political debate, and Americans don’t much like what they’ve seen. If we were to engage in a proper Article V process, voters in each state and their representatives in Congress would have to take a hard look at the merits of the ERA and discover that there are very good reasons not to add it to our Constitution.
The language of the ERA is deceptively simple: “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.” But women and men already enjoy equality under the law, and the Constitution, federal law, and state law in all 50 states bar discrimination on the basis of sex. What would change with the ERA, therefore, is that women would lose the right to have our sex defined as a legal category at all, forcing erasure of biological distinctions and single-sex spaces.
People have already been dealing with the falsity of the total interchangeability between the sexes in the context of the debate over trans-identifying men who want to enter women’s bathrooms, sports teams, and even prisons. The ERA would make all these issues worse: Lia Thomas declared he was female and demanded entrance to the swim team locker room, but under the ERA, he could demand the same things without the pretense of identification at all. It is, after all, only “discrimination” on account of sex that keeps a boy who failed to make the cut on the male track team from being the fastest runner among the girls.
The status quo allows the law to recognize that in some relevant situations, the large and undeniable physical differences between men and women allow, and even demand, separation (notably different from the laws about discrimination on the basis of race). And we’ve seen over the past half-decade of gender insanity that keeping the categories of male and female legally distinct is absolutely necessary to protect the rights of women and girls, as well as to remain in touch with basic reality.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
It is this commonsense recognition that allows public schools to maintain separate restrooms for boys and girls while still forbidding corporations from firing an employee simply for being a man or woman. The ERA would force a stifling and inflexible view of “equality” — really, sameness — down our throats and, if inscribed as an amendment, require a herculean effort to undo.
President Donald Trump has just delivered on his promise to voters with an executive order that sharply and clearly defines sex and protects these rights. The ERA represents a law of the land that is unable to distinguish between men and women, a law that ignores biological sex differences even when remaining blind to them means damaging women’s opportunities, privacy, dignity, and safety. People have just voted against that idea, and in his inglorious exit, former President Joe Biden had no power to salvage it.
Inez Stepman is a senior policy analyst at Independent Women’s Forum.